Citation Nr: 0211987
Decision Date: 09/13/02 Archive Date: 09/19/02
DOCKET NO. 98-19 553 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for a psychiatric
disorder, to include schizophrenia.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
David T. Cherry, Counsel
INTRODUCTION
The veteran served on active duty from January 1971 to March
1972. He had no foreign service.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1998 rating decision of the Los
Angeles, California, Department of Veterans Affairs (VA)
Regional Office (RO).
In April 1999, the Board remanded the case for further
development.
FINDINGS OF FACT
1. VA has met its duty to notify and assist the veteran.
2. In a February 1996 rating decision, the RO found that no
new and material evidence had been submitted to warrant
reopening the veteran's claim for a psychiatric disorder, to
include schizophrenia, and notified the veteran accordingly;
he did not appeal that decision
3. The additional evidence added to the record since
February 1996, by itself or in connection with evidence
previously assembled, is not so significant that it must be
considered to fairly decide the merits of the claim.
CONCLUSIONS OF LAW
1. The February 1996 RO rating decision denying the
reopening of the claim of entitlement to service connection
for a psychiatric disorder, to include schizophrenia, became
final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R.
§§ 3.104, 20.302, 20.1103 (1995).
2. No new and material evidence has been presented to
warrant reopening a claim of entitlement to service
connection for a psychiatric disorder, to include
schizophrenia. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West
1991 & Supp. 2001); 38 C.F.R. § 3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
In an April 1975 Board decision, service connection was
denied for a psychiatric disorder on the bases that the
veteran had a personality disorder for which service
connection could not be granted and that a chronic acquired
psychiatric disorder was not incurred in or aggravated by
active service. The evidence of record included service
medical records; hospitalization records from the North
Little Rock, Arkansas, VA Medical Center, dated from December
1973 to October 1974; and outpatient treatment records from
the North Little Rock, Arkansas, VA Medical Center, dated
from July to October 1974.
Service medical records reflect that the veteran underwent a
mental status evaluation in February 1972 as a part of his
separation examination. His behavior, orientation, thought
content, and thought processes were all normal, and he was
noted to have no significant mental illness. It was
determined that he had a passive-aggressive personality. On
a report of medical history, he denied having had or having
had frequent trouble sleeping, frequent or terrifying
nightmares, depression or excessive worry, loss of memory or
amnesia, and nervous trouble of any sort.
VA medical records show that the veteran was admitted to a VA
hospital in December 1973, having requested help for drug
problems. He did not want to be placed on a closed ward and
had not understood what was involved in the treatment
program, so he requested, and was given, a discharge on the
day of admission. The diagnosis was drug abuse (LSD,
marijuana and amphetamine). In July 1974,
the veteran was hospitalized for eight days for drug
treatment. He reported a three and a half year history of
drug abuse, including the use of acid, marijuana,
amphetamines and mushrooms. He had had flashbacks and
withdrawal seizures but no prior treatment for drug abuse.
The final diagnoses were drug abuse, mixed type (including
hallucinogens) and schizoid personality. At the time of
discharge it was remarked that he might be interested in
claiming compensation on account of his "schizoid
personality" but not really do anything about his drug
problem. He was given a month's supply of medication and
follow-up care was recommended for his personality disorder.
VA mental hygiene clinic records reflect that when seen in
July 1974, the veteran reported that he heard voices that
were not quieted by Thorazine. He expressed other complaints
including nightmares and various fears. In August 1974 it
was noted that he did not seem psychotic despite his
expressions of "visions" and the like. After reiterating
that no signs of psychosis were seen, his therapist stated
that he would "go along with" the veteran and give him some
Thorazine. In October 1974, the veteran was requesting
hospitalization as he wasn't making it on the outside. It
was noted that if he was not accepted into the drug treatment
program he should continue in outpatient psychotherapy. On
the same day he was admitted to a VA hospital complaining of
being too sleepy with his medication. He stated that at
times he ran and screamed to relieve inner tension and that
he spent his time working with two service organizations
trying to get disability compensation. He remained
hospitalized for six days and was discharged at his request.
The discharge diagnosis was transient situational
disturbance, adjustment reaction of adult life. He was
deemed competent and able to return to work immediately.
In a September 1981 rating decision, the RO denied reopening
the claim for service connection for a psychiatric disorder.
The additional evidence then of record included reports of
November 1974 and June 1976 psychiatric evaluations done in
conjunction with a Social Security disability claim, VA
hospitalization records dated from 1975 to 1976, and a report
of June 1977 VA neuropsychiatric examination. This evidence
reflects a diagnosis of schizophrenia. The November
1974 psychiatric evaluation was performed by D. Frazer, M.D.,
at the South Arkansas Regional Health Center. The report
reflects that the veteran reported having been hospitalized
by VA for the first time in late 1973 and that he dated his
problems to service when he was informed that someone had
killed his father. In the report of the June 1976
evaluation, which was prepared by A. Hood, Jr., M.D., it was
noted that the veteran reported that he had been in service
from 1969 to 1971 and served in Vietnam, and that after his
return from Vietnam he was hospitalized several times,
apparently for a psychotic break.
The veteran was notified of the September 1981 rating
decision and of his appellate rights but he did not appeal.
By a rating decision dated in February 1996, the RO denied
the reopening of the claim for service connection for a
psychiatric disorder, to include schizophrenia. The
additional evidence received after the September 1981 rating
decision includes documents from the service
department/service personnel records, VA treatment records
dated from 1982 to 1989, a July 1984 statement of a VA
psychologist, and reports of April 1984, August 1986 and
April 1988 VA psychiatric examinations. The service
department documents include statements from servicemembers,
including commissioned and non-commissioned officers, from
the unit to which the veteran had been assigned in August
1971. The statements reflect, in part, that the veteran had
a negative attitude, missed duty on occasions, required
consistent supervision, and performed his duties poorly. (No
mention was made of his father having been killed.) Each
service member recommended that the veteran be discharged
from service. The additional medical evidence includes
diagnoses of schizophrenia and rule out major affective
disorder. In a February 1984 VA mental health clinic record
he was noted to deny any present or past problem with drugs.
The July 1984 VA psychologist's statement notes a provisional
diagnosis of residual type schizophrenia and that a review of
the veteran's records indicated a history of schizophrenia
and psychiatric treatment since Decmember 6, 1973. A
September 1986 VA hospital report reflects diagnoses of
atypical psychosis and a personality disorder. The veteran
was noted to be manipulative and to claim he was paranoid and
heard voices and that he had "flashbacks from Vietnam."
The April 1988 VA examination report notes that the veteran
underwent his first VA hospitalization about 13 months after
service, at the Little Rock VA Medical Center, and that he
had a psychotic episode with auditory and visual
hallucinations and paranoid ideation. It was also noted that
the veteran's father had committed suicide whet the veteran
was 17. The diagnosis was paranoid schizophrenia.
The veteran was notified of the February 1996 rating decision
but did not appeal.
The evidence received since the February 1996 rating decision
includes the following: VA treatment records dated from 1989
to 1992; the report of an August 1997 VA general medical
examination; the report of a September 1997 VA mental
disorder examination; the transcript of the March 1999 Board
videoconference hearing; a May 1999 statement of the veteran;
records from the South Arkansas Regional Health Center
received in July 1999; copies of the report of the veteran's
February 1972 separation examination, his DD Form 214, and
service personnel records received in September 1999; and
records from the Social Security Administration (SSA)
received in September 2000.
VA treatment records dated from 1989 to 1992 reflect
diagnoses of schizophrenia. A discharge summary from an
October to November 1990 hospitalization notes that the
veteran had a fifteen-year history of schizophrenia and a
diagnosis of chronic paranoid schizophrenia, rule out organic
toxic psychosis. It was noted that his father and sister had
schizophrenia and that his father had committed suicide at
age 73
On the August 1997 VA general medical examination, the
diagnoses included chronic paranoid schizophrenia. On the
September 1997 VA mental disorders examination, the veteran
reported that he had had psychiatric symptomatology -
particularly auditory hallucinations - for as long as he
could remember and that the voices became much worse during
service, which led to violent scenes whereby his command
auditory hallucinations led him to attack people. He claimed
that he tried to get a medical discharge, but was denied and
was discharged in 1972 with a general discharge. The Axis I
diagnosis was chronic paranoid schizophrenia. The examiner
indicated that the veteran complained of paranoid-type
auditory hallucinations since childhood, which, according to
the veteran, were particularly exacerbated during active
service, a period of time that he described as being abusive
in both physical and emotional terms. The examiner noted
that the records did not indicate that any of the veteran's
symptoms originated in or were linked in any definitive way
to active service.
At the March 1999 Board videoconference hearing, the veteran
testified that after his father died in November 1971, he
started hearing voices and seeing things, became afraid of
people, and was unable to get along with anyone. He also
stated that he was treated for his psychiatric disorder
within one year of active service at the North Little Rock,
Arkansas, VA Medical Center, at which time schizophrenia was
first diagnosed. Transcript.
In a May 1999 statement, the veteran suggested that he had
had a psychiatric evaluation at the South Arkansas Regional
Health Center within a year of active service, at which time
it was determined that he was disabled. Records from that
facility show that the veteran was hospitalized in July 1990
per a petition to commit. A diagnosis of chronic paranoid-
type schizophrenia with acute exacerbations was made.
Subsequent to being released from the hospital, his treatment
was terminated in December 1991 after repeated failures to
report.
Service personnel records reflect that the veteran received
non-judicial punishment in May 1971 (altering a public
record); November 1971 (failing to report for duty); and
January 1972 (failing to obey a lawful order and failing to
report for duty). The veteran was discharged from service in
March 1972 because of unsuitability (character and behavior
disorders).
In an SSA report of Continuing Disability Interview, dated in
October 1999, the veteran dated the onset of his psychiatric
problems to April 1974. SSA records include VA and private
medical records from 1974 to 2000. The reports of the
November 1974 and June 1976 private psychiatric evaluations
and the records from the May 1975 VA hospitalization are
duplicate copies of evidence already considered by the RO.
The rest of the evidence is new and includes VA outpatient
treatment records dated in 1982, private treatment records
dated from 1982 to 1985, a report of a psychological
evaluation done in November 1982, VA hospital records dated
in 1988, and reports of two psychiatric evaluations conducted
in January 2000.
Private hospital records dated in 1982 reflect that the
veteran gave a history of having served in combat in Vietnam
and that the final diagnoses were recurrent major depression
with psychotic features and delayed post-traumatic stress
disorder. When the veteran was hospitalized by VA in August
1985 it was concluded that the most likely diagnosis was mild
organicity secondary to drug use rather than schizophrenia
and the final diagnosis was organic delusional disorder.
Records of a March 1988 VA hospitalization note the veteran's
report of having served in Vietnam for several months.
Records of the August 1988 VA hospitalization show that the
veteran reported that he first heard voices when he was
nineteen at which time he was first hospitalized and that the
veteran's father had committed suicide when the veteran was
15 years old. Additionally, the veteran reported having
served in Vietnam for more than eight months. The discharge
diagnoses at that time were cocaine abuse and organic
affective disorder.
The report of the November 1982 private psychological
evaluation reflects that the veteran reported his problems
began in 1971, during service, when he was ready to go to
Vietnam, got word that his father had died, and became scared
and violent. The diagnosis was paranoid schizophrenia in
remission. The veteran underwent a psychiatric evaluation in
early January 2000, performed by E. Wiens, M.D. It was noted
that he had a history of chronic schizophrenia with auditory
hallucinations with his first hospitalization in his late
teens. The Axis I diagnosis was chronic paranoid
schizophrenia. It was indicated that paranoid schizophrenia
was first diagnosed when the veteran was nineteen years old.
The veteran underwent another psychiatric evaluation in mid
January 2000, performed by L. Ogbechie, M.D., for Social
Security. It was indicated that he had active service from
1971 to 1974 and that the history of his present illness
dated back to 1974. The veteran stated that when he was
nineteen, during service, a mental illness was diagnosed and
that he was then discharged from service. He also reported
that he began having psychiatric breakdowns when he was
nineteen, resulting in a discharge from service. The Axis I
diagnosis was chronic paranoid schizophrenia.
Legal Criteria
Service connection may be established for a disability
resulting from a personal injury suffered or disease
contracted in the line of duty, or for aggravation of a
preexisting injury or disease in the line of duty.
38 U.S.C.A. § 1110 (West 1991).
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time. If chronicity in service
is not established, a showing of continuity of symptoms after
discharge is required to support the claim. Service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303 (1999).
Also, if a veteran had 90 days or more of service during
wartime or after December 31, 1946, and if psychosis is
manifested to a compensable degree within one year following
discharge from service, the disorder will be considered to
have been incurred in service. This is a rebuttable
presumption. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 &
Supp. 2001); 38 C.F.R. §§ 3.307, 3.309 (2001).
Congenital or developmental defects, absent, displaced or
supernumerary parts, refractive error of the eye, personality
disorders and mental deficiency are not diseases or injuries
in the meaning of applicable legislation for disability
compensation purposes. 38 C.F.R. § 4.9 (2001).
The law grants a period of one year from the date of the
notice of the result of the initial determination for the
filing of a notice of disagreement; otherwise, that
determination becomes final and may not be reopened unless
new and material evidence is submitted. 38 U.S.C.A.
§ 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103
(1995).
Effective August 29, 2001, 38 C.F.R. § 3.156(a) was amended
with regard to the definition of new and material evidence.
However, the revised definition only applies to claims filed
on or after August 29, 2001. See 66 Fed. Reg. 45,620,
45,629-30 (August 29, 2001). Because the veteran's claim was
filed before August 29, 2001, the old definition applies.
Under the old definition new and material evidence means
evidence not previously submitted to agency decision makers
that bears directly and substantially upon the specific
matter under consideration; that is neither cumulative nor
redundant; and that, by itself or in connection with evidence
previously assembled, is so significant that it must be
considered to fairly decide the merits of the claim. See
38 C.F.R. § 3.156(a) (2001).
In the regulations implementing the VCAA of 2000, competent
medical evidence is defined as evidence provided by a person
who is qualified through education, training or experience to
offer medical diagnoses, statements or opinions. Competent
medical evidence may also mean statements conveying sound
medical principles found in medical treatises. It would also
include statements contained in authoritative writings such
as medical and scientific articles and research reports or
analyses. See 66 Fed. Reg. at 45,630 (to be codified as
amended at 38 C.F.R § 3.159(a)(2)). Evidence that is simply
information recorded by a medical examiner and that is not
enhanced by any additional medical comment by that examiner
is not competent medical evidence. LeShore v. Brown, 8 Vet.
App. 406, 409 (1995).
As to the materiality of evidence presented since the last
final disallowance of the claim, the newly presented evidence
does not need to be probative of all of the elements that are
required to award a claim, but instead needs to be probative
only as to each element that was a specified basis for the
last disallowance. Evans v. Brown, 9 Vet. App. 273, 284
(1996). In this case, the veteran needs to present evidence
that he that he had schizophrenia or other acquired
psychiatric during active service, that his a psychosis such
as schizophrenia was compensably manifested within one year
after active service, or that schizophrenia or other acquired
psychiatric disorder is otherwise related to active service.
Analysis
There has been a significant change in the law during the
pendency of this appeal with the enactment of the VCAA of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The law,
in part, redefines the obligations of VA with respect to the
duty to assist and also includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. The VCAA of 2000 is
applicable to all claims filed on or after the date of
enactment, November 9, 2000, or filed before the date of
enactment and not yet final as of that date. VCAA of 2000,
Pub. L. No. 106-475, § 7(a), 114 Stat. 2096, 2099 (2000).
See also Karnas v. Derwinski, 1 Vet. App. 308 (1991).
VA has issued final rules to amend adjudication regulations
to implement the provisions of the VCAA of 2000. 66 Fed.
Reg. 45,620, 45,630-32 (to be codified as amended at 38 C.F.R
§§ 3.102, 3.156(a), 3.159 and 3.326(a)). The intended effect
of the new regulations is to establish clear guidelines
consistent with the intent of Congress regarding the timing
and the scope of assistance VA will provide to a claimant who
files a substantially complete application for VA benefits,
or who attempts to reopen a previously denied claim.
Consideration of the new regulations in the first instance
does not prejudice the veteran. See generally Sutton v.
Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App.
384 (1993); VAOPGPREC 16-92 (July 24, 1992).
The Board has reviewed this case in light of the new
legislation and regulations and finds that VA has notified
the veteran and his representative of the information and
evidence necessary to substantiate his claim. Thus, although
the RO did not have the benefit of the explicit provisions of
the new regulations, VA's duties have been fulfilled. In
particular, pursuant to a Board remand, the RO sent the
veteran a letter dated May 17, 1999, in which the veteran was
notified that he should submit or identify any additional
evidence, particularly medical evidence, showing that he had
a chronic acquired psychiatric disorder within the initial
year after service or that such a disorder is otherwise
related to service. He was provided VA Form 21-4138 for a
response. He was further advised that if he wanted the RO to
obtain any evidence on his behalf, he should complete
enclosed VA Forms 21-4142 to authorize the release of medical
evidence and that if he had received VA treatment he should
let the RO know so his records could be obtained. He was
also advised of evidence the RO was already planning to
request. Therefore, notice was provided of the information
and evidence needed to substantiate this claim and of the
veteran's responsibility and VA's in terms of procuring it.
38 U.S.C.A. § 5103A; 66 Fed. Reg. at 45,630-32 (to be
codified as amended at 38 C.F.R § 3.159).
Pursuant to the April 1999 remand, the RO obtained the
veteran's service personnel records and attempted to obtain
any additional service medical records, but there were none.
The RO also requested records from the North Little Rock,
Arkansas, VA Medical Center for any treatment for a
psychiatric disorder for the first year following active
service, but was informed in May 1999 that there was no
record of such treatment. Since the veteran indicated that
he was evaluated at the South Arkansas Regional Health Center
for a psychiatric disorder during the first year after active
service, the RO obtained records from that facility.
Additionally, the RO obtained other private medical records,
Social Security records and what appears to be the veteran's
complete SSA file. Therefore, the RO complied with the
directives of the April 1999 remand and has satisfied the
duty to assist. See Stegall v. West, 11 Vet. App. 268
(1998).
Nothing in the VCAA of 2000 shall be construed to require
that VA reopen a claim that has been disallowed except when
new and material evidence is presented or secured.
38 U.S.C.A. § 5103(f) (West Supp. 2001). There is no duty to
assist in providing a medical examination or opinion for any
claim to reopen a finally decided claim that was filed before
August 29, 2001. The veteran's claim was filed before August
29, 2001; therefore, for this particular claim, VA has no
duty to assist under the VCAA of 2000 in obtaining a medical
opinion or providing a medical examination. 66 Fed. Reg. at
45,620, 45,629-31.
To summarize, the evidence of record prior to the 1996
unappealed rating decision showed that the veteran was found
to have a personality disorder in service and that on a
separation medical history questionnaire he denied all listed
psychiatric symptoms. In December 1973, almost two years
after his separation from service, he sought treatment for
drug abuse that included LSD, a drug commonly known to be
hallucinogenic. In July 1974, he was hospitalized for drug
treatment, with final diagnoses of drug abuse and a
personality disorder. It was not until November 1974, more
than 30 months after service, that there was a diagnosis of a
chronic acquired psychiatric disorder, schizophrenia.
Subsequent medical records reflect additional diagnoses
primarily of schizophrenia and also of a personality disorder
and atypical psychosis. Some records note the veteran's
claimed history of having served in Vietnam, which is
obviously false since his service records show that he had no
foreign service and was stationed only in the United States.
None of this evidence tends to show that schizophrenia or any
other acquired psychiatric disorder had its onset during
service or in the case of any psychosis was compensably
manifested within a year thereafter, despite any history
given by the veteran alleging that his symptoms dated back to
service. Inasmuch as the veteran did not appeal the
February 1996 rating decision, it is final.
In regard to evidence received since the February 1996
decision, duplicate copies of documents previously in the
file obviously are not new. Service department records
obtained show that the veteran was considered to have a
negative attitude and to be a poor performer by various
individuals with whom he had been stationed and worked.
Those records do not reflect that the authors suspected a
mental disorder and they do not indicate that the veteran's
father had recently been killed.
The additional medical evidence reflects continued diagnoses
of schizophrenia, without any medical opinions or other
competent evidence that relates it to active service. In
contrast to earlier statements by the veteran that his mental
problems began in 1971 in service when his father was
murdered, the "new evidence" contains a notation that his
father committed suicide when the veteran was 15, which would
have been prior to service. As for the August 1988 VA
hospitalization records that contain a history given by the
veteran of first hearing voices when he was nineteen (he
turned nineteen within one year of active service), this
history was unenhanced information recorded by a medical
professional and is not competent medical evidence as to the
onset of an acquired psychiatric disorder or of a
relationship between the current schizophrenia and active
service. See LeShore, 8 Vet. App. at 409.
For the purposes of determining whether new and material
evidence has been submitted, credibility of the evidence,
although not its weight, is generally to be presumed.
Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, in
regard to the additional medical records that refer to
alleged combat service in Vietnam, it is well established by
the service department evidence that the veteran never served
outside the United States; thus, allegations of service in
Vietnam need not be afforded the presumption of crediblity
and can be rejected outright. Accordingly, diagnoses of PTSD
based on the alleged Vietnam service also need not be
accepted since they are predicated on false information.
The report of the August 1997 VA psychiatric examination
contains a diagnosis of schizophrenia but does not provide an
opinion linking schizophrenia to service. Even though the
examiner recorded the veteran's claimed history of
hallucinations since childhood that had been exacerbated
during service, the examiner did not express any opinion of a
relationship between service and the diagnosed schizophrenia.
In fact, the examiner noted that the records did not indicate
that the claimed symptoms originated or were linked in to
service.
In regard to the reports of the November 1982 psychological
examination and the January 2000 psychiatric examination,
which reflect that the veteran reported that his
symptomatology began in active service, these notations are
bare transcriptions of lay history and not competent medical
evidence of a relationship between the current schizophrenia
and active service. See id. In fact, the period of active
service - 1971 to 1974 - reported to the examining
psychiatrist by the veteran during the evaluation in mid
January 2000 is inaccurate.
With regard to the report of the psychiatric examination in
early January 2000, which contains a notation that
schizophrenia was first diagnosed when the veteran was
nineteen years old, SSA provided VA with what appears to be
the veteran's entire SSA file and there is no medical
evidence dated while the veteran was nineteen (May 20, 1972
through May 19, 1973) showing that schizophrenia was
diagnosed. Thus, there is no indication that the notation in
that report is anything more than lay history given by the
veteran. See id.
For the reasons explained above, the additional medical
evidence received since the 1996 unappealed rating decision
is new, if not previously of record, but not material because
it does not contain competent medical evidence or opinion
tending to relate schizophrenia or any other acquired
psychiatric disorder to active service.
Most of the veteran's service personnel records, his DD Form
214, the transcript of the March 1999 hearing and the May
1999 statement of the veteran are new but not material. None
of these documents contains competent evidence regarding the
onset or origin of the veteran's schizophrenia or any other
service-connectable acquired psychiatric disorder. The
service personnel records not previously of record show that
the veteran had disciplinary problems during active service,
but these documents are not competent evidence that such
problems were the manifestations of an acquired psychiatric
disorder, including schizophrenia. Regarding the veteran's
testimony that he began to hear voices during active service,
he is competent to report symptomatology, but as a lay
person, his testimony is not competent evidence that any
voices were manifestations of schizophrenia rather than, for
example, LSD or any other hallucinogenic drug used in service
or that schizophrenia otherwise is related to service. See
66 Fed. Reg. at 45,630 (to be codified as amended at 38 C.F.R
§ 3.159(a)); see also Espiritu, 2 Vet. App. at 494-95.
Additionally, the veteran's testimony that he was treated for
schizophrenia by VA within one year of active service need
not be accepted as credible as it is clearly untrue. The
North Little Rock, Arkansas, VA Medical Center indicated that
there was no treatment during that period and the veteran's
earliest VA medical records, which are in the file, clearly
show that he was initially treated for drug-related problems
and that this was more than a year after service. His
testimony to the contrary is not competent evidence as to the
onset of schizophrenia. See 66 Fed. Reg. at 45,630 (to be
codified as amended at 38 C.F.R § 3.159(a)); see also
Espiritu, 2 Vet. App. at 494-95. As for the veteran's May
1999 statement suggesting that he underwent a psychiatric
evaluation at the South Arkansas Regional Health Center
within a year of active service, the report of the November
1974 psychiatric evaluation done at that facility reflects no
prior treatment there.
Accordingly, the Board concludes that the additional
evidence, by itself or in connection with evidence previously
assembled, is not so significant that it must be considered
to fairly decide the merits of the claim, and that the claim
of entitlement to service connection for a psychiatric
disorder, to include schizophrenia, is not reopened.
38 U.S.C.A. §§ 5103, 5103A, 5108, 7105; 38 C.F.R. § 3.156(a).
ORDER
New and material evidence to reopen the claim for service
connection for a psychiatric disorder, to include
schizophrenia, has not been received and the application to
reopen the claim is denied.
JANE E. SHARP
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.